Answer the question, Mr. President

How much has President Obama told us about his ability to kill Americans at home?

The question is pretty simple. The answer might not be that simple but it is an answer that is deserved by the American people, no matter how laborious it is to explain that answer clearly.

How much has President Obama himself told Americans about his claimed ability to target, detain and assassinate us? For years, we were given no answers that I know of.

We, the public, have gotten access to a white paper (PDF), not the actual legal memos, and that was leaked by a journalist, Michael Isikoff.

Some senators on the Senate Intelligence Committee (SSCI) have now received several legal memos after they threatened to filibuster some of his nominees. There are, we believe, eleven in total. The president released two more memos for the SSCI to review. They are not allowed to show them to their staff or make any record of them. The review period is temporary. The public has not been given any access to them, even though, as we now know, the president, through his attorney general, told us that the president does assume the power to kill us, even at home. But he still dodged the direct question that has been asked of him by both citizens (in a Google+ hangout session), by a formal letter from Senator Rand Paul, and by many others. Holder gave some information, but left the question still very much up in the air.

Conor Friedersdorf, a staff writer at The Atlantic, says that Holder’s recent response is “non-responsive, evasive, and deliberately manipulative”. I agree. Significant pressure needs to be applied by all concerned Americans until we understand clearly what power this president has assumed, what kinds of things might get us killed, or what circumstances might put us in close proximity to someone else they might target for assassination. Many innocent civilians have been killed overseas by this president because they were somehow associated, intentionally or not intentionally, with the target of a drone or cruise missile strike.

The Question

The question asked in a Google+ hangout

During a Google+ Hangout yesterday, conservative commentator Lee Doren asked President Obama whether he claims the authority to kill a U.S. citizen suspected of being associated with al Qaeda or associated forces on U.S. soil. Notice the question was restricted to only a U.S. citizen on U.S. soil (our concerns are, of course, broader and apply to the White House’s illegitimate claim of authority to kill people it unilaterally deems a threat, even if they are far from any battlefield, abroad).

What should have been a simple “no,” turned into this:

Well first of all, there has never been a drone used on an American citizen on American soil. We respect and have a whole bunch of safeguards in terms of how we conduct counterterrorism operations outside of the United States. The rules outside of the United States are going to be different than the rules inside the United States, in part because our capacity, for example, to capture a terrorist inside the United States is very different than in the foothills or mountains of Afghanistan and Pakistan. What I think is absolutely true is that it is not sufficient for citizens to just take my word for it that we’re doing the right thing.

The question asked by Sen. Ron Wyden

Questions about the law that allows pres to kill Americans – Americans should know the specifics of this law. The link to Wyden’s letter is here: Wyden letter.

The question asked by Sen. Rand Paul

So the situation now is that citizens know that they can be killed by their president with no due process at all. The only kind of due process is a monarchical, off with his head type due process. But we don’t know what the rules are or what it is that we might do that could get us killed by the judge/jury/executioner president.

Rand Paul is now engaged in a talking filibuster and has agreed to end it when he gets a clear answer to the question. A statement from Holder this morning still did not clarify the situation.

Senators from both parties joined the Republican from Kentucky, who opposes John O. Brennan to lead the C.I.A., who said he would “speak until I can no longer speak.”

“I rise today to begin to filibuster John Brennan’s nomination for the C.I.A.,” Mr. Paul began. “I will speak until I can no longer speak. I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court.”

The issue is summed up in the transcript and video below. Even a broken clock is right twice a day. Rand Paul is right to demand and answer to this question and there is a lot of bipartisan agreement on this.

It’s not so simple. You see, the drone strike program is under the Department of Defense, so when the C.I.A. says they’re not going to kill you in America, they’re not saying the Defense Department won’t. So Eric Holder sent a response, the attorney general, and his response says, “I haven’t killed anyone yet. I don’t intend to kill anyone but I might.” And he pulls out examples that really aren’t under consideration. There is the use of lethal force that can always be repelled. If our country is attacked, the president has the right to defend and protect the country. Nobody questions that. Nobody questions if planes are flying towards the twin towers whether they can be repulsed by the military. Nobody questions whether a terrorist with a rocket launcher or a grenade launcher is attacking us, whether they can be repelled. They don’t get their day in court. But if you are sitting in a cafeteria in Dearborne, if you happen to be an Arab-American who has a relative in the middle east and you communicate with them by e-mail and somebody says, oh, your relative is someone we suspect of being associated with terrorism, is that enough to kill you?. . . We have a process for deciding this. We have courts for deciding this, to allow one man to accuse you in secret, you never get notified you have been accused. Your notification is the buzz of the propellers on the drone as it flies overhead in the seconds before you’re killed. Is that what we really want from our government?

Due Process in the Age of Obama

We’ve heard a speech by Eric Holder on some kind of new age due process.

But what has the president himself told the citizens he serves about when and how he can kill them? The man is certainly a great orator and he has shown that when he chooses, he can craft and deliver big speeches on topics that are important to him. What could be more important than the topic of the right he has assumed to assassinate American citizens and why has he not had the courage and integrity to come forward and give a big speech on this topic?

In addition to some of the areas of ambiguity, Holder told us in a speech that with targeted killings overseas, the discussions among the White House and DoD leaders is good enough due process for him. No judges, charges, trial involved. In fact, he can do due process entirely on his own if he so decides.

But there are also some terms that have not been defined well enough for many people and it has caused broad objection and discussion, and not along any party lines.

Imminent

There are some serious questions about the use of the term “imminent” which is one of their requirements for using extraordinary force to kill someone overseas for the suspicion of a crime, a pre-crime. Their definition of “imminent” does not mean “immediate”. Does this definition of “imminent” also apply to their rules for killing Americans on American soil?

Even granting – as most scholars do – that IHRL’s imminence requirement is far from the picture of clarity, this standard is woefully overbroad. It not only relieves the US of the need to possess evidence that the “senior operational leader” in question intends to continue to attack the US, it actually shifts the burden of proof onto that individual to show that he is no longer a threat. (How he would actually do that is never addressed in the White Paper. Take an ad out in the New York Times?) That is simply unacceptable from an IHRL perspective; as the Human Rights Committee has specifically noted, states must “not use ‘targeted killings’ as a deterrent or punishment.”

While the memos they are hiding are almost certainly far more damning (as I’ll lay out tomorrow), this is utterly damning in itself.

Associated Forces

We still don’t know what exactly associated forces means.

(Indeed, membership in al-Qaida is not even required to be assassinated, as one can be a member of a group deemed to be an “associated force” of al-Qaida, whatever that might mean: a formulation so broad and ill-defined that, as Law Professor Kevin Jon Heller argues, it means the memo “authorizes the use of lethal force against individuals whose targeting is, without more, prohibited by international law”.)

Definition of Terrorism

We now know that Occupy protesters were defined as low level domestic terrorists. NYPD Counterterrorism units were observed at Occupy protests more than once, as were Homeland Security vehicles. I saw the NYPD Counterterrorism unit myself. There are some serious questions about framing and entrapment of some Occupy protesters hit with terrorism charges after the NATO Summit in Chicago. Things that the NYPD is doing with informants who are religious Muslims of Middle Eastern descent are really, really shady. The FBI has had some very questionable undercover operations that gave potential domestic terrorists, very low level kinds of figures, the aid and materials that they needed to carry out some kind of attack. If you are not aware of these facts, do take some time to read about them.

The Answer

So, what has the president himself told us so far about this?

Since Holder brought up Pearl Harbor and 9/11, and the people held responsible for those attacks were not Americans, why did Holder answer Paul’s question in that manner?

The attorney general should be brought before Congress and interrogated about his notion of what the president could do in the aftermath of an attack.

The very scenario to be guarded against is a president using the pretext of a terrorist attack to seize extraordinary powers. Isn’t that among the most likely scenarios for the United States turning into an authoritarian security state? To be sure, if Americans are at the controls of fighter jets en route to Hawaii, of course Obama could order that they be fired upon. If Americans hijacked a plane, of course it would be permissible to kill them before they could crash it into a building. But those are not the sorts of targeted killings that Senator Rand Paul asked about in a letter to White House counterterrorism adviser John Brennan, prompting Holder’s response.

[…]

Any thinking person can see that Holder’s letter is non-responsive, evasive, and deliberately manipulative in its sly reassurances, right down to the rhetorically powerful but substantively nonsensical invocation of 9/11. (Being more subtle about it than Rudy Giuliani doesn’t make it right.) To credulously accept this sort of response, on an issue as important as this one, is behavior unfit for any citizen of a free country, where safeguarding the rule of law is a civic responsibility.

[Emphasis added]

Marcy Wheeler, an expert on this topic who has been writing about it for years, offers this and I recommend reading the whole post and others on her site:

All three answers are interesting. Paul is upset that Holder said the President could use lethal military force in the US. Holder invoked Pearl Harbor and 9/11, during the latter of which the Vice President, on his sole authority, ordered DOD to shoot down domestic aircraft in the US. If Paul has a problem, he should probably also have a problem with Dick Cheney’s order on 9/11.

Brennan’s answer about the CIA is a masterpiece of misdirection. Brennan doesn’t answer whether the CIA can operate in the US, which is broadly covered by other questions Paul asked so easily could and should have been included in his answer. He uses very interesting scare quotes around power. He makes it very clear that this answer does not address the legal question of whether the CIA could do this (he says DOJ will answer that, but Holder in fact didn’t address whether CIA could be ordered to kill in the US). Most importantly, however, Brennan answers a question Paul didn’t answer: Whether the CIA Director could order the CIA to use lethal force in the US.

The CIA, of course, conducts covert operations based on Presidential authorization, not CIA Director authorization. And Brennan stopped well short of answering whether the President could authorize the CIA to conduct lethal operations in the US, and whether the Executive Branch believed the President could authorize such strikes based on his own authority. And as I said, Holder quite simply didn’t answer that question at all.

Finally, though, I love the way Eric Holder discusses trials only after talking about using law enforcement – like the FBI – to incapacitate terrorists and other evil-doers twice.

Holder didn’t comment, one way or another, on whether the President could authorize law enforcement authorities to conduct targeted killings in the US. And since the precedents for using lethal force in the white paper are domestic law enforcement cases, that use of lethal force would come with the most cover from legal precedent.

In short, none of these assertions constitutes a denial that a particular agency could, under certain circumstances, could conduct targeted killing in the US. All they say, in conjunction, is that were a targeted killing to be conducted in the US, it would most likely be conducted by law enforcement.

Conclusion

There should have been less secrecy and more public debate about the entire topic of targeted assassination. But that didn’t happen. The administration has, until recently, denied that the program even existed, and still does not acknowledge it in court cases. But at this point, the questions are very explicit and clear and the more that Obama and Holder dodge, the worse they look, and the more the problem escalates.

It’s time to answer the question, publicly, and very clearly. To do anything else is damaging to everyone involved. The bottom line is, we are owed a clear answer to this question.

Pretty sad – and pretty revealing – that it was left to Rand Paul to raise in the Senate the killing of 16-year-old Abdulrahman Awlaki

Updates

At 7:13pm eastern, Sen. Durbin just came to the Senate floor. Sen. Paul had brought a bill to the floor, a nonbinding resolution, a sense of the Senate to not use drones against American citizens on American soil. Sen. Durbin registered his objection to that resolution and shot it down. He said “we’ll have hearings on drones”.

So not only will this administration not answer the question about killing Americans at home, they will not even express a sense of the Senate that Americans should not be killed by drone strikes at home. Amazing. No attempt to even amend the sense of the Senate or anything – they just blew it up.